CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 6 mars 2025

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Turkey   (Adopted by the Committee of Ministers on 6 March 2025 at the 1521 st meeting of the Ministers’ Deputies)   Application Case Judgment of Final on 14305/17 SELAHATTİN DEMİRTAŞ (No. 2) 22/12/2020 Grand Chamber 14332/17 YÜKSEKDAĞ ŞENOĞLU AND OTHERS 08/11/2022 03/04/2023   The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);   Recalling the Court’s findings in these cases that the applicants, elected members of the National Assembly at the relevant times, were detained in the absence of evidence to support a reasonable suspicion they had committed an offence (violations of Article 5, paragraphs 1 and 3) and that their arrests and pre-trial detention pursued an ulterior purpose (violations of Article 18 taken in conjunction with Article 5); that the lifting of their parliamentary immunity and the way the criminal law was applied to penalise them for political speeches were not foreseeable and prescribed by law (violation of Article 10) and that their consequent detention made it effectively impossible for them to take part in the activities of the National Assembly (violaton of Article 3 of Protocol No. 1); further recalling that in the Yüksekdağ Şenoğlu and Others case the Court also found a violation of the right to a speedy decision on the lawfulness of detention on account of the use of stereotyped reasoning by the domestic court in denying access to the investigation file (violation of Article 5, paragraph 4);   Recalling further the Court’s indication under Article 46 of the Convention that the nature of the violations under Article 18 left no real choice as to the measures required to remedy it, and that any continuation of the applicants’ pre-trial detention on grounds pertaining to the same factual context would entail a prolongation of the violation of their rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46, paragraph 1, of the Convention; and that Türkiye had to take all necessary measures to secure the applicants’ immediate release;   Recalling that the obligation of restitutio in integrum calls for measures to restore the applicants as far as possible to the position they would have enjoyed had these violations not occurred and that such measures should be compatible with the conclusions and spirit of the Court’s judgment, involving good faith on the part of the respondent State, which is of paramount importance where the Court has found a violation of Article   18;   Recalling the authorities’ submissions that the Ankara Assize Court, since 27 October 2021, has refused to release Mr Demirtaş and Ms Yüksekdağ Şenoğlu on account of new evidence in the case file which, according to this court, was in substance different from that examined by the European Court in its judgments and allegedly demonstrated a deliberate intention on the part of the applicants to provoke violence, raising strong suspicions that they had committed the alleged offences;   EXPRESSED its profound concern that Mr Demirtaş and Ms Yüksekdağ Şenoğlu have been continuously deprived of their liberty since November 2016 despite the Court’s findings under Article 18 that their detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate and the Committee’s numerous decisions;   DEPLORED the absence of a decision by the Constitutional Court on Mr Demirtaş’s application concerning his detention on remand lodged on 7 November 2019, as well as the absence of the reasoned decision of the Assize Court following its concise decision convicting the applicants delivered on 16 May 2024;   UNDERLINED that, in view of the Court’s findings and indications, it is incumbent on the authorities to establish on the basis of cogent evidence that the applicants’ current detention does not relate to the same factual grounds examined by the Court and is not therefore a continuation of the violations it found;   EXHORTED the authorities to take all possible steps to ensure that the Constitutional Court completes its determination on the applications introduced by Mr Demirtaş and Ms Yüksekdağ Şenoğlu with full regard to the Court’s findings and the Assize Court issues its reasoned judgment in the shortest possible time frame;   EXHORTED the authorities, in the meantime, to ensure the applicants’ immediate release, for example by exploring alternative measures to detention, until the Constitutional Court or the European Court establishes whether the Assize Court based its judgment on the same factual context as that of the European Court in the present cases, providing a direct and sufficiently strong link between the applicants and the offences they were convicted of;   EXPRESSED ITS RESOLVE to consider further action if, before the 1531 st meeting (June 2025) (DH), the applicants are not released, or in the absence of a judgment of the Constitutional Court concerning Mr   Demirtas’ detention or the detailed reasoning of the Assize Court.